UNFAIR LABOR PRACTICE OF EMPLOYERS
Employees of an appropriate
Unfair Labor Practice
▪ ULP has a limited and technical meaning. It is a
labor relations concept with a statutory
definition.
▪ Article 219(k) - “Unfair labor practice” means any
unfair labor practice as expressly defined by the
Code.
▪ Therefore, the act done must be prohibited by
the Code for it to be considered ULP.
▪ Articles 259 for ULP of employer and Article 260
for ULP of a labor organization
▪ Thus, not every unfair act can be labeled “unfair
labor practice.”
Elements of ULP
1. There should exist an employer-employee
relationship
2. The act complained of must be expressly
mentioned and defined in the Labor Code as
constitutive of unfair labor practice.
▪ If the act is not covered by the grounds provided
for by the law, then it is not ULP.
ART. 259. [248] Unfair Labor Practices of Employers.
– It shall be unlawful for an employer to commit any
of the following unfair labor practices:
(a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
(b) To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which he
belongs;
(c) To contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
(d) To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in
order to encourage or discourage membership in
any labor organization. Nothing in this Code or in any
other law shall stop the parties from requiring
membership in a recognized collective bargaining
agent as a condition for employment, except those
employees who are already members of another
union at the time of the signing of the collective
bargaining agreement.
bargaining unit who are not members of the
recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues
and other fees paid by members of the recognized
collective bargaining agent, if such non-union
members accept the benefits under the collective
bargaining agreement: Provided, That the individual
authorization required under Article 242, paragraph
(o) of this Code shall not apply to the non-members
of the recognized collective bargaining agent;
(f) To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given
or being about to give testimony under this Code;
(g) To violate the duty to bargain collectively as
prescribed by this Code;
(h) To pay negotiation or attorney’s fees to the union
or its officers or agents as part of the settlement of
any issue in collective bargaining or any other
dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph
notwithstanding, only the officers and agents of
corporations, associations or partnerships who have
actually participated in, authorized or ratified unfair
labor practices shall be held criminally liable.
A. ULP SPEECH
(a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
▪ The management commits interference by way
of speech when it contains:
1. promise of a reward; or
2. threat or reprisal
▪ Unfair labor speech does not only include verbal
speech but also includes written speech (e.g.
posting notices, sending letters [termination,
reprimand or memo].
INTERFERENCE
▪ It is the act of restraining or coercing the
employees in their exercise of the right of self-
organization.
How do you know whether an employer interfered
with and coerced the employees?
▪ The test of interference/coercion is whether the
employer has engaged in conduct which may
reasonably be said tends to interfere with the
free exercise of employees’ right to self-
organization and collective bargaining.
UNFAIR LABOR PRACTICE OF EMPLOYERS 1
If there was threat, but the employee was not actually
threatened. Is it still ULP?
▪ Yes, it is still ULP because what is used is the
Dangerous Tendency Rule.
DANGEROUS TENDENCY RULE
▪ If the content of the speech has an inherent
tendency to discourage or encourage the right
to self-organization not whether there was
actual threat effected.
▪ It is not necessary that the employee is actually
intimidated or coerced, but if there is a
reasonable tendency to interfere, restrain or
coerce employees.
▪ As long as there is inherent tendency to
discourage or encourage the right to self-
organization of the employee, then that is ULP.
How do we know that the act of the employer
constitutes ULP?
▪ By applying the Totality of Conduct Doctrine
▪ Under this doctrine, the Court looks at the
surrounding circumstances, the history of the
employer on how he treats unions or based on
the acts of the company towards unionism.
▪ Because of its nature and consequences, a
finding of ULP should not be made based alone
on the cited ULP act considered in isolation but
should be viewed based on the employer's act
outside of the bigger context of the
accompanying labor relations situation.
INSULAR LIFE ASSURANCE EMPLOYEES
ASSOCIATION VS. INSULAR LIFE ASSURANCE
CO., LTD.
GR No. L-25291 | January 30, 1971
Ruling :
It was an act of interference for the employer to send
letters to all employees notifying them to return to
work at a time specified therein, otherwise new
employees would be engaged to perform their jobs.
The individual solicitation of the employees or
visiting their homes, with the employer urging the
employees to cease union activity or cease striking,
constitutes unfair labor practice.
Can the management commit ULP while there was no
union yet ? YES.
SAMAHAN NG MGA MANGGAGAWA SA
BANDOLINO–LMLC VS. NLRC
G.R. No. 125195 | July 17, 1997
RULING:
An employer who interfered with the right to self-
organization before the union is registered can be
held guilty of ULP.
The employees were dismissed, or their services
were terminated, because they were soliciting
signatures in order to form a union within the plant.
B. YELLOW DOG CONTRACT
(b) To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which he
belongs;
▪ There is a promise exacted from the workers as
a condition of employment, that they shall not
join or belong to a labor organization or attempt
to organize one during their period of
employment or that they shall withdraw
therefrom in case they are already members of
a labor organization.
▪ A Yellow Dog Contract is effectively an outright
restriction on your right to Self-Organization
that’s why it is a ULP.
C. ULP CONTRACTING
(c) To contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
▪ As a general rule, the act of an employer in
having work or certain services or functions
being performed by union members contracted
out is not per se ULP. It is a valid exercise of
management prerogative absent any proof of
malice, arbitrariness, and anti-unionism.
When does it constitute unfair labor practice?
▪ It is only when the contracting out will interfere
with, restrain or coerce employees in the
exercise of their right to self-organization that it
shall be ULP.
▪ You should ask first, if the employer’s reason to
contract out services is legitimate.
▪ Or where it is motivated by a desire to prevent
his employees from organizing or to bargain
collectively.
▪ It is not ULP to contract out work for reasons of
business decline, inadequacy of facilities and
equipment and similar reasonable grounds.
DIGITAL TELECOMMUNICATIONS PHILIPPINES,
INC. VS. DIGITAL EMPLOYEES UNION
GR Nos. 184903-04 | October 10, 2012
RULING:
Bad faith was manifested by the timing of the
closure of Digiserv and the rehiring of some
UNFAIR LABOR PRACTICE OF EMPLOYERS 2
employees to Interactive Technology Solutions, Inc.
(I-tech), a corporate arm of Digitel.
The closure of Digiserv to outsource its operations
to I-tech constitutes ULP under Article 259(c) of the
Labor Code.
At the height of the labor dispute, occasioned by
Digitel’s reluctance to negotiate with the Union, I-
tech was formed to provide the same services
performed by Digiserv.
D. COMPANY UNION
(d) To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
▪ The employer, when it initiates, dominates,
assists or otherwise interferes with the
formation or administration of any labor
organization, including the giving of money or
other support to it or its organizers or
supporters.
▪ This is when the company is obviously in favor
of a particular union, it gives the members
money, bonus, or they give assistance just to
make that union win.
▪ The union should be left in their own resources.
▪ The employer should not help them in election
or other activities, the employer should remain
as bystander.
KAPISANAN NG MGA MANGGAGAWA NG ALAK
(NAFLU) VS. HAMILTON DISTILLERY COMPANY
GR No. L-18112 | October 30, 1962
The company asked the president of the union to
dissolve NAFLU and when he refused, he was
dismissed. Some members of NAFLU resigned
therefrom and joined the Workers' Union because
otherwise they would be dismissed.
Those who remained affiliated with NAFLU were
allowed to work only two days a week. Later, 52
employees who were members of NAFLU were also
terminated for refusing to join Hamilton Workers’
Union.
Because of these circumstances, the Supreme
Court declared Hamilton Workers’ Union is a
company union.
E. DISCRIMINATION
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in
order to encourage or discourage membership in
any labor organization. Nothing in this Code or in any
other law shall stop the parties from requiring
membership in a recognized collective bargaining
agent as a condition for employment, except those
employees who are already members of another
union at the time of the signing of the collective
bargaining agreement. Employees of an appropriate
bargaining unit who are not members of the
recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues
and other fees paid by members of the recognized
collective bargaining agent, if such non-union
members accept the benefits under the collective
bargaining agreement: Provided, That the individual
authorization required under Article 242, paragraph
(o) of this Code shall not apply to the non-members
of the recognized collective bargaining agent;
Three separate labor law concepts:
1. Discrimination
2. Union security clause
3. Agency fee
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in
order to encourage or discourage membership in any
labor organization. xxx
DISCRIMINATION
The failure to treat all persons equally when no
reasonable distinction can be found between those
favored and those not favored.
▪ What is prohibited as ULP under the law is to
discriminate in regard to wages, hours of work,
and other terms and conditions of employment
in order to encourage or discourage membership
in any labor organization.
▪ Discrimination is not unlawful per se, there can
be a valid “classification” if employees
concerned are not similarly situated.
▪ But if there is a basis for their distinctions, then
you can treat them differently. And it will not be
discrimination.
Q: When does it constitute discrimination?
A: If all else is equal, and you discriminate because
of union participation or union related issues, then
that is discrimination that qualifies as ULP.
Examples of ULP by discrimination:
▪ To dismiss permanently only union members
and not non-unionists (Manila Pencil v. CIR)
▪ Non-regularization of long-time employees
because of their affiliation with the union while
new employees were immediately regularized.
(Manila Railroad v. Kapisanan)
▪ Where the employer transferred the union
president from the main office in Manila to Cebu
at the time when the union was still being
UNFAIR LABOR PRACTICE OF EMPLOYERS 3
 organized. The uneven application of its
marketing plan resulting in the said transfer of
the union president is patently an act of
discrimination constitutive of ULP
(AHS/Philippines v. NLRC)
(e) xxx Nothing in this Code or in any other law shall
stop the parties from requiring membership in a
recognized collective bargaining agent as a condition
for employment, except those employees who are
already members of another union at the time of the
signing of the collective bargaining agreement. xxx
▪ What is material to consider is the fact that the
sanction imposed on the employee that
constitutes ULP was occasioned by his act of
filing a complaint against the employer or of
participating in any labor case, regardless of its
nature and extent and in whatever capacity or
purpose the same may have been made by him.
▪ The prohibition in Article 259(f) is also violated
where the victim of discrimination is not the
employee himself who testified but a person
related to him. There is an indirect
discrimination.

VALID DISCRIMINATION: Union Security Clause Examples of ULP by indirect discrimination:

▪ A union security clause essentially requires ❑ Dismissal of a laborer on account of union
membership in the union so that an employee activities of his brother (Matter of Quidnick
may retain his job and the union’s existence may Dye Works)
be assured. ❑ The discharge of an employee due to the
▪ It is a form of encouragement of union union activities of the wife (In the matter of
membership which is not considered ULP. the Ford Motor Co.)
▪ In a sense, there is discrimination when certain ❑ The discharge of a wife due to the union
employees are obliged to join a particular union. activities of the husband (Union Asbestos
▪ But according to the Court, it is discrimination and Rubber Co.)
favoring unionism; it is a valid kind of
“discrimination.” ▪ The act of reprisal contemplated under this
▪ It is a form of compulsory union membership provision is not limited to the dismissal or
which is limitedly authorized by Article 259(e). discharge of an employee.
▪ The employer’s retaliatory act may take various
F. RETALIATORY MEASURES forms, such as transferring the employee to a
(f) To dismiss, discharge or otherwise prejudice or demeaning position or assigning him with more
discriminate against an employee for having given difficult work, or otherwise punishing him
or being about to give testimony under this Code; because he has filed or he has participated in a
labor case. That’s still ULP.
▪ When the employer dismisses an employee for
having given testimony under labor relations,
ULP Dismissal vs. Ordinary Illegal Dismissal
about to give testimony, or filed a complaint or
Ordinary Illegal
about to do so.
ULP Dismissal Dismissal
▪ The retaliatory measures have to pertain to
Art. 259(F) Art. 118 or
labor relations, otherwise, the rules on ordinary
Art. 294(279)
illegal dismissals will apply.
Ground for strike Not a ground for strike
Will the provision apply when the employer’s
Motivated to prevent
retaliation was due to the employee refusing to testify
an employee from Arises if the dismissal
in favor of the employer? YES.
exercising his right to is without just cause
❑ The act of compelling employees to sign an
self-organization
instrument indicating that the employer
In labor relations, the In labor standards, the
observed labor standards provisions of law
action for ULP action for illegal
when he might have not, constitutes unfair labor
dismissal prescribes dismissal prescribes
practice.
within 1 year within 4 years
❑ This actuation is analogous to the situation
under Article 259(f) which distinctly makes it an ULP dismissal can be An ordinary illegal
unfair labor practice to dismiss, discharge or transformed into an dismissal cannot be
otherwise prejudice or discriminate against an ordinary illegal transformed into a ULP
employee for having given or being about to give dismissal case. dismissal case
testimony under the Labor Code. (Mabeza v. The dismissal does not
Only Art 259 ripens into
NLRC) ripen into a criminal
a criminal action
action.

UNFAIR LABOR PRACTICE OF EMPLOYERS 4

G. VIOLATION OF DUTY TO BARGAIN
(g) To violate the duty to bargain collectively as
prescribed by this Code;
Unfair Labor Practice in Collective Bargaining
happens during the negotiation phase of the CBA.
Kinds of ULP in Collective Bargaining
1. Bad Faith Bargaining
2. Refusal to Bargain
3. Individual Bargaining
4. Blue-Sky Bargaining
5. Surface Bargaining
1. BAD FAITH BARGAINING
❑ It is essential that the employer and employees
should both act in good faith when it comes to
collective bargaining.
❑ If one will complain against bargaining in bad
faith, the charge should be raised while the
bargaining is in progress.
❑ When the bargaining is finished and the CBA has
been executed voluntarily by the parties, a
charge of bargaining in bad faith is too late.
❑ Bad faith bargaining is eliminated if the parties
end up with the CBA.
❑ The CBA negates all the charges of bad faith
bargaining.
❑ All provisions in the CBA are supposed to have
been jointly and voluntarily incorporated by the
parties.
❑ So the presumption is it is jointly and voluntary
entered by the union and the company.
❑ Boulwarism - It is the tactic of making a “take-it-
or-leave-it” offer in a negotiation, with no further
concessions or discussion.
❑ This “take it or leave it’ offer or counter-offer does
not constitute proper collective bargaining.
❑ It is considered ULP as essentially, no labor
negotiation has taken place.
2. REFUSAL TO BARGAIN
❑ When the employer refuses to submit an answer
or reply to the written bargaining proposals of
the certified bargaining union.
❑ The counter-proposal should be filed or should
be submitted within ten (10) days from receipt
of the proposal.
❑ The failure of the employer to submit counter-
proposals does not, by itself, constitute a refusal
to bargain.
❑ However, it is different if the employer refuses to
submit an answer or reply to the written
bargaining proposals of the union.
❑ Stonewalling - a refusal to communicate or
cooperate
FAILURE OR REFUSAL TO GIVE COUNTER-
PROPOSALS
❑ While the law does not compel the parties to
reach an agreement, it does contemplate that
both parties will approach the negotiation with
an open mind and make a reasonable effort to
reach a common ground of agreement. (Kiok
Loy v. NLRC)
❑ Refusing to send a counter-proposal to the
union and to bargain anew on the economic
terms of the CBA due to flimsy excuse attacking
status of the union for the delay in the
negotiation. (General Milling v. CA)
❑ School’s failure to make a timely reply to the
proposals of the union more than a month after
the same were submitted to it due to a feeble
excuse that its Board of Trustees had not yet
convened to discuss the matter. Its actuation
showed a lack of sincere desire to negotiate the
CBA thereby rendering it guilty of ULP. (Collegio
de San Juan v. Assoc. of Employees)
3. INDIVIDUAL BARGAINING
❑ To negotiate or attempt to negotiate with the
individual workers rather than with the certified
bargaining agent is ULP.
❑ Once there is an EBA, the employer is supposed
to deal and negotiate with the EBA and not with
the individual employees.
❑ Such actions are illegal as constituting
unwarranted acts of interference. ULP.
4. BLUE-SKY BARGAINING
❑ The “unrealistic and unreasonable demands in
negotiations by either or both labor and
management, where neither concedes anything
and demands the impossible.”
❑ It actually is not collective bargaining at all.
5. SURFACE BARGAINING
❑ A strategy in which one of the parties “merely
goes through the motions,” with no intention of
reaching an agreement.
❑ It is a sophisticated pretense in the form of
apparent bargaining, but does not satisfy the
statutory duty to bargain.
❑ Collective bargaining is not simply an occasion
for purely formal meetings between
management and labor union, but presupposes
a desire to reach an ultimate agreement to enter
into a collective bargaining contract.
H. KICKBACKS
(h) To pay negotiation or attorney’s fees to the union
or its officers or agents as part of the settlement of
UNFAIR LABOR PRACTICE OF EMPLOYERS 5
any issue in collective bargaining or any other
dispute;
▪ A form of negotiated bribery in which a
commission is paid to the bribe-taker in Q: Who has the burden of proof in ULP cases?
exchange for services rendered. A: The union has the burden of proof to present
▪ Self-organization and collective bargaining are substantial evidence to support its allegations of
treasured rights of workers. The law shields unfair labor practices committed by the employer.
them from corruption.
▪ It is a punishable act of ULP for the employer to
pay the union or any of its officers or agents
any negotiation fee or attorney’s fee as part of
settlement in collective bargaining or any labor
dispute.
▪ To do so is akin to bribery, an under-the-table
deal.

Employer Union
Asking for or accepting
Has to pay (not merely attorney’s fees or
offer) negotiation or negotiation fee is
attorney's fees. already ULP (Art.
260(d))

Q: What about signing bonuses? What about trying to

bribe the union members to sign the CBA by giving
them signing bonus? Would that be considered
kickbacks*?
A: NO, that will not qualify as kickbacks because in
that case, everybody receives a signing bonus, not
just the union officers or agents.

I. VIOLATION OF CBA
(i) To violate a collective bargaining agreement

▪ Violation of the CBA is ULP only if GROSS in

character which means flagrant and/or
malicious refusal to comply with the ECONOMIC
PROVISIONS of the agreement.

Non-economic
Economic Provisions
Provisions
Wage rates, pensions, Union security clause,
fringe benefits etc. check-off clauses,
(anything that can be grievance procedure
valued with money) etc.

Violation of Non-
Not Gross Violation
economic Provisions
▪ Not ULP ▪ Not ULP
▪ Only grievance ▪ Only grievance
▪ Go to the grievance ▪ Go to the grievance
machinery then machinery then
voluntary voluntary
arbitration arbitration
To be ULP, it must be a GROSS VIOLATION of the
ECONOMIC PROVISIONS of the CBA.

UNFAIR LABOR PRACTICE OF EMPLOYERS 6